In applying the doctrine that community of profit and loss constitutes or evidences a partnership as regards third persons, difficulty often arose at common law in determining what participation in the profits might thus suffice(i), and cases occurred of extreme hardship, as where a servant was held to be a partner, and liable for the debts of the firm, merely because a per centage of the profits had been paid to him in part of wages. All difficulty of this kind has however been obviated by the statute 28 & 29 Vict. c. 86, which enacts that no person shall be constituted a partner by advancing to a trader a sum of money as a loan, with the understanding that he shall receive a share of the profits by way of interest or otherwise (k); also, that no servant or agent, shall be accounted a partner, because his remuneration consists of a specified share of the profits(). There are, further, provisions in this enactment that a man who sells the goodwill of his business and reserves a share of the future profits as a consideration for the sale(m), and that the widow or child of a deceased trader, receiving by way of annuity a portion of the profits of the business(n), shall not be subject to the liabilities of the trader carrying on the same. Though *in the event of the bankruptcy of a trader, or his making a composi[ *601] tion with his creditors, the lender of any loan or seller of any goodwill as before mentioned will not be entitled to recover anything till the rest of the creditors have been satisfied in full.(o). BOOK THE SECOND. THE RIGHTS OF THINGS. property in general. CHAPTER I. PROPERTY IN GENERAL. THE former book of these Commentaries having treated at large of the jura personarum, or such rights and duties as are annexed to the persons of men, The rights to the objects of our inquiry in this second book will be the jura rerum, or those rights which a man may acquire in and to such external things as are unconnected with his person. These are what writers on natural law style the rights of dominion, or property; concerning the nature and origin of which we will premise a few observations, before proceeding to classify and consider its several objects. There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic The nature and dominion *which a man claims and exercises over the exter origin of such rights. nal things of the world, in total exclusion of the right of [*2] other men. And yet there are few that consider the origin and foundation of this right. We are pleased with the possession, and we care not to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built. We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the last will and testament of the dying owner; not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude his fellow-creatures from a determinate spot of ground, because his father had done so before him: or why the occupier of a particular field or of a jewel, when lying on his death-bed, and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him. These inquiries, it must be owned, would be useless and even troublesome in common life. It is in practice well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reasons of making them, so long as those laws are clearly for the benefit of society. But, when law is to be considered not only as a matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society. In the present stage of scientific examination into the early history of man, it is not possible to do more than state a probable theory of the origin of law as regards property. As the reason of man by degrees enabled him to acquire dominion over the whole animal kingdom, there must have grown up [*3] at the same time the sense of *power which superiority of intelligence induces in conflict not only with unreasoning animals, but even with other men. This power would obviously seek its first gratification in the enjoyment of the largest attainable amount of physical pleasure. So long as nature abundantly supplied the purposes of human life, by the exercise of only the pleasurable excitement of the chase or by merely reaping the natural fruits of the earth, and so long as their mental developement was insufficient to suggest to men any further wants than those of food and rest, there would seem to be small place for the idea of property to gain ground. But the most ancient records which modern researches have brought to light of man's habitations tell us that the period of an amply sufficient natural supply of the necessities of life to every individual man was, if it ever existed, not of long duration; for, at least in the colder climates of northern regions, something of the nature of houses must soon be felt as necessities (a), and the mere mention of structures erected by labour draws with it the concurrent idea of their ownership by individuals. For there always must have been an inequality of powers in individuals, and it is impossible to suppose any state of society in which the superior strength or intelligence of one man as compared with that of others, would not be exercised for his own especial benefit. It may in fact be reasonably doubted whether at any time when men enjoyed the result of labour in the form of substantial and permanent works, there was or could be a communion of goods (b). A distinction has been taken [*4] *between ownership and the right of user of a material object, which in the case of a natural thing not the production of labour, has some apparent foundation. By the law of nature and reason, he, who first began to use it, acquired therein a kind of transient property, that lasted so long as he was using it, and no longer (c): or, to speak with greater precision, the right of possession continued for such time only as the act of possession lasted. Thus the ground was in common, and no part of it was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot of it, for rest, for shade or the like, acquired for the time a sort of ownership, from which it would have been unjust and contrary to the law of nature, to have driven him by force: but the instant that he quitted the use or occupation of it, another might seize it without injustice. Again, a vine or other tree growing naturally might be said to be in common, as all men were equally entitled to its produce; and yet any private individual might gain the sole property of the fruit which he had gathered for his own repast. This doctrine is illustrated by Cicero, who compares the world to a great theatre, which is (a) See Lyell's Antiquity of Man, where the interesting account of the lake dwellers proves that these early specimens of humanity had an object in erecting houses beyond even the desire of shelter. (b) Justinian, 1. 43, c. 1, following the mere conceptions of poets, describes the early state Erant omnia com of things as follows: (c) Barbegr. Puff. 1. 4, c. 4. common to the public, and yet the place which any man has taken is for the time his own (d). Because, in But the distinction seems one rather of words than substance. many cases, the only right which a man can have is but one of user during his lifetime. He cannot destroy land, nor does it cease to exist after his death, and though he may be allowed to a limited extent to point out who shall have the use afterwards, these rights of property which he exercises only differ in degree, and not in kind, from the rights of possession above noticed. The sense of ownership which permitted a man whilst *in possession of a piece of land to prevent others from interfering with his enjoyment, [*5] is not different from that which enables him to consume absolutely the fruits, even though it may be that through circumstances of the habits of his life there comes a time when he ceases to care for the possession, and so abandons it. All questions in fact of the original right or property, hang upon the circumstance whether or not there is by nature a practically unlimited supply of fresh land or other objects of man's wishes. If there be, the idea of property is almost unnecessary; if there be not, it at once comes into play. As soon, therefore, as mankind increased in number, it became necessary to entertain conceptions of permanent dominion; and to appropriate to indivi Separate property. duals not the immediate use only, but the very substance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world been continually broken and disturbed, while a variety of persons were striving who should get the first occupation of the same thing, or disputing which of them had actually gained it. The growth of intelligence and ingenuity, in contriving means for meeting the increasing wants of men, would naturally be accompanied by the developement of the idea that something more than mere enjoyment, protected by the strong arm of the holder, was involved in the relations of men and things. The idea of justice allowing possession to remain with the weak, even in the presence of the strong, would spring up. This, like the reed which bows before the storm. without breaking, must pass through many vicissitudes, which history sufficiently exemplifies, but even among the rudest nations its roots have always remained alive. The idea of property, then, or the right of user of those things which are not. and can not be destroyed by their use, and the right of consuming those things quæ ipso usu consumuntur, takes its origin from some of the very *fundamental requirements of society. The ground of this right is [*6] apparent enough when exercised by an individual man over a thing which. owes its value entirely to labour, that is an article which is made out of materials supplied by nature in abundance. He who bestowed the labour, and thus in a sense created the article, is obviously the owner of it (e). (d) Quemadmodum theatrum, cum commune sit, recte temen dici potest, ejus esse eum locum quem quisque occupârit. De Fin. 1. 3, c. 23. (e) Mr. Locke says, -"That the labour of a man's body, and the work of his hands, we may say are properly his. Whatsoever then he removes out of the state that nature hath provided and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his prop VOL. I.-54 erty." (On Gov. c. 5.) This of course only applies to the case where there is no contract express or implied with another respecting the thing in question, and also where the material is really the property of no one, which though hardly possible in a country like England, may exist in a country where there are regions of land unclaimed by any one. Some further difficulty exists in the investigation how property is first acquired, or to what principle it owes its origin, when the subject of the right is apparently a thing existing by nature, and to some extent valuable in itself, without the expenditure of any labour upon it. Land, for instance, seems to be of this kind. The difficulty is, however, only apparent, because in reality the case scarcely can have occurred. If land be of unlimited extent, as where a few people land upon a large uninhabited continent, it cannot be said to have a value, every person may take as much as he requires, and the very fact of his taking possession and setting it apart for himself, leading as it certainly would do to his expending some labour upon it, places this case of land in the same category as a boat manufactured out of wood taken from a primeval forest. Occupancy and labour, which are almost convertible terms, seem therefore to be the basis upon which the theory of property rests. And it is to be noticed that the extent of the right arising from this occupancy is not a matter [*7] which is concerned in the first *enjoyment. Whether or not a man may have the power of saying who shall enjoy the land after his death, so that his words shall be respected, or whether or not, in the event of his saying nothing, his son or somebody else shall have the land, can be determined by no first principle of justice such as that which decides that so long as he himself lives, he shall not be ousted. Such questions must of necessity depend upon the common consent of men, unless left to the simple arbitrament of the sword, so that he who is strongest shall come and claim both of right and of might. The solutions they have received have materially differed in different countries. Of this we shall see more hereafter. But we cannot agree with some writers on natural law, such as Grotius and Puffendorf, who think that the whole right of possession and enjoyment arising from occupancy is founded on a tacit and implied but special assent of all mankind, that the first occupant should become the owner; we hold with Barbeyrac, Titius, Mr. Locke, and others, that there is no such implied assent, neither is it necessary that there should be; for the very act of occupancy, being a degree of bodily labour, is, alone, from an obvious principle of natural justice, without any consent or compact, sufficient of itself to gain a title. To go deeper than this, and seek the cause why men should have adopted and enforced any principle of natural justice, would lead into disquisitions inappropriate to this place. We have already (f) sufficiently indicated the ground upon which all laws must rest, and no reasonable distinction can be drawn between those which sanction the right of property, and those which protect a man's life and limb from the assault of others (g). [*8] Abandonment of property. Property, both in lands and moveables, being thus *originally acquired by the first taker, whose taking amounts to a declaration that he intends to appropriate the thing to his own use, remains in him, by the principles of universal law, till such time as he does some other act which shows an intention to abandon it; for then it becomes, naturally speaking, publici juris once more, and is liable to be again appropriated by the next occupant. So, if one is possessed of a jewel, and casts it into the sea or a public highway, this is such an express dereliction, that a property will be (f) Ante, vol. i, chap. 1. (g) For interesting discussions on these questions the reader is referred to Hume's Philosophical Works, vol. ii.; Bentham, Fragment of Government, Ed. 1776, p. 179 n.; Austin, Province of Jurisprudence. |